Lawful Permanent Residents who have been placed in removal proceedings (whether it is because they are subject to ground of removability under INA §237 or grounds of inadmissibility under INA §212) may be able to request termination of their removal proceedings under 8 C.F.R. § 1239.2(f) so that he or she can pursue an application for naturalization with U.S. Citizenship & Immigration Services (USCIS). This defense to removal is available to LPR’s who can establish prima facie eligibility for naturalization as well as exceptionally appealing or humanitarian factors. Normally, in order to demonstrate that the LPR is prima facie eligible for naturalization, a draft of the Form N-400, Application for Naturalization, should be included with the Motion to Terminate with the Immigration Court. Some ICE Chief Counsel’s Office also may want to see evidence that the application has already been filed with USCIS, such as the N-400 Receipt Notice issued by USCIS. However, ultimately, if the Immigration Court declines to terminate removal proceedings, USCIS may not grant naturalization to an LPR in removal proceedings pursuant to INA §318. While most of the eligibility requirements can presumably be demonstrated, the most debatable one is usually the ‘good moral character’ requirement. For most LPR’s, pursuant to INA § 316(a), an application for naturalization need only demonstrate that he or she has been a person of good moral character during the five (5) year continuous residence requirement. Thus, any act that establishes a lack of good moral character that has been committed outside of the five (5) year requirement is not a statutory bar to naturalization under INA §101(f). (Some LPR’s have a reduced continuous residence requirement and thus need to establish their ‘good moral character’ during that period.) If the LPR has been convicted of an aggravated felony, they are permanently ineligible for naturalization and will not be able to seek to terminate their removal proceedings through this avenue. However, if such aggravated felony conviction occurred prior to November 29, 1990, the LPR is not statutorily barred from establishing good moral character for purposes of naturalization. Specifically, pursuant to the USCIS’ Adjudicator’s Field Manual (“AFM”) Ch. 73.6(a)(3)(A):
“[a]n aggravated felony conviction prior to November 29, 1990, does not preclude a finding of good moral character for purposes of naturalization… Rather, a conviction of an aggravated felony prior to November 29, 1990 should be considered in combination with the applicants present day moral character measured against the standards of the community. Thus, if an applicant's actions during the statutory period do not reflect reform and rehabilitation, then the applicant may not be able to demonstrate good moral character during the statutory period.”
Thus, pursuant to USCIS AFM Ch. 73.6(a)(3)(A), an LPR with an aggravated felony conviction from prior to November 29, 1990 is not permanently precluded from establishing good moral character for the purposes of naturalization. Instead, when adjudicating the LPR’s naturalization application, USCIS must weigh the LPR’s conviction against their reformation since that time and their present day strong moral character. In addition to establishing their prima facie eligibility for naturalization, the LPR also has to provide evidence that their case involves exceptionally appealing and humanitarian factors. These factors can include, but are not limited to, the LPR’s length of residence in the U.S., their U.S. citizen or LPR family members, evidence of reformation or rehabilitation since the LPR’s conviction(s). In an ideal world, the Immigration Court will terminate removal proceedings, without prejudice. (Without prejudice means that the government may seek to reinstate removal proceedings in the future – in this example, if the naturalization application is ultimately denied by USCIS, the government can put the LPR back into removal proceedings.) Once the removal proceedings are terminated, the LPR can conclude their naturalization application process through USCIS. If approved for naturalization, the LPR will become a U.S. citizen and will no longer be subject to grounds of removability or inadmissibility in the future.